4. Conclusions and recommendations

This final section of the evaluation report offers several broad conclusions and recommendations arising from the detailed findings presented in the previous sections.

The Canadian Environmental Protection Act (CEPA 1999) is described as being an "enabling" Act that provides the Minister of the Environment with broad, discretionary powers for protecting the environment. The Act imposes, however, a significant number of new obligations on the Minister, while maintaining many obligations that previously existed for CEPA 1988. Limitations with respect to the resources available for implementation of CEPA 1999 have required the Department to establish explicit priorities. The highest priority is placed on meeting all mandated obligations. The Department is well aware of all formal Ministerial obligations under the Act, and it has established the organizational base and relevant processes and procedures and secured the necessary resources to ensure that all of its obligations are met.

Of particular note, the Department:

• is on track and well positioned to satisfy the requirement to categorize all of the more than 23 000 substances on the Domestic Substances List prior to the September 2006 deadline imposed by the Act; preliminary categorization decisions have already been published for about 17 000 substances, and a further 1000 substances have been identified for removal from the Domestic Substances List following investigations that concluded that they were inappropriate for inclusion;
• has met all legislated timeline requirements associated with the proposal and finalizing of risk management measures and tools in response to all substances proposed, by the Ministers of Health and Environment, for addition to the CEPA 1999 Schedule 1 List of Toxic Substances; and
• has strengthened industry and interjurisdictional cooperation on environmental protection matters through non-CEPA 1999 initiatives.

Despite the volume and significance of accomplishments documented in this report, the volume of the mandated activity the Department expects to undertake upon the completion of the Domestic Substances List categorization exercise in September 2006 could greatly exceed activity levels experienced over the evaluation period. While resource requirements have been assessed and met, the anticipated volume of work may pose significant planning and coordination challenges within Environment Canada, among federal departments, between levels of government and with industry and other stakeholders.

In addition, there is a need for enhanced government-wide cooperation and clarity of mandate and responsibilities for managing certain types of new substances, specifically animate products of biotechnology, in areas involving aquatic organisms, pharmaceuticals, certain food products and transgenic animals.

Despite the real progress in the areas of Ministerial obligations, outputs and governance, Environment Canada, and more generally the Government of Canada, has yet to realize the full potential of CEPA 1999 to serve as the primary means of protecting environmental and human health in Canada. Several key aspects of the Department's implementation of CEPA 1999 need to be addressed before the Act's full potential can be realized.

Federal house provisions

Key actions with respect to the federal house provisions of Part 9 of CEPA 1999 have not been initiated. The provisions give the government the authority to ensure that federal operations and operations on federal and Aboriginal lands are subject to the same environmental performance standards as those of equivalent operations in the communities in which they are located. The government has made very limited use of the CEPA 1999 Part 9 provisions. Among the identified priority actions for strengthening implementation of CEPA 1999 and that remain outstanding are:

• establishment of a focal point for departmental and Government of Canada activities respecting environmental matters and the federal house;
• technical investigation and scientific assessment of the risk from federal house facilities and facilities on federal and Aboriginal lands; and
• subsequent development of a strategic plan for managing federal house issues under the Act.

CEPA National Advisory Committee

Fundamental differences of opinion on the appropriate role for the federal government in environmental protection remain between the federal government and its provincial and territorial counterparts. These differences, however, have not precluded fruitful collaboration on specific environmental issues. These differences of opinion will need to be addressed, however, before broader harmonization of environmental protection standards across Canada will be realized. The CEPA National Advisory Committee is intended to provide the forum and process for addressing such issues; however, all parties to the committee expressed concerns about its current effectiveness, including the following:

• Aboriginal representatives maintain that the committee is an ineffective forum for addressing the concerns of Aboriginal peoples and communities.
• Provincial and territorial representatives on the committee expressed concern with respect to the volume and pace of activity to be considered by the committee and their jurisdictional capacities to respond in a timely manner. They also expressed strong concerns with perceived federal duplication of their own efforts.
• Federal representatives are concerned that committee members do not see the real impacts their efforts have had on shaping federal policies and risk management measures and tools. They are also concerned about declining attendance rates, due to travel restrictions and other budgetary limitations imposed within some provincial and territorial jurisdictions.

Internal and external barriers

Barriers exist that restrict the use of the Act's provisions relating to:

• the use of economic instruments and fees and charges;
• cost recovery of both administrative costs and damages resulting from pollution incidents; and
• public actions to initiate investigations and recover damages to private property.

Environmental outcomes

The Department has not yet determined or communicated the environmental outcomes it intends to achieve with the broad enabling powers provided by the Act (with the exceptions of the Clean Air Agenda and the broad guidance provided by the National Pollution Prevention Strategy and the Toxic Substances Management Policy). Moreover, the links between risk management measures and environmental objectives are not always clear. The expected outcomes as developed for the purposes of this evaluation do not have formal departmental support. External stakeholders have also identified the lack of clear environmental outcomes as a significant shortcoming. The Department will continue to face difficulties in assessing its progress under the Act unless clear outcomes and objectives are understood and agreed upon by all parties.

Monitoring and reporting

It remains too early to determine or report on demonstrable progress in environmental improvements under CEPA 1999 in many program areas. Measurement and accompanying reporting systems to determine and report on demonstrable progress even at some future date have yet to be fully introduced by Environment Canada. The ultimate success of CEPA 1999 in addressing the challenges of environmental and human health protection may be determined by the ability to monitor and report progress.

The Government of Canada, led by Environment Canada should develop a set of clear and realistic environmental outcomes that it intends to achieve under the broad enabling powers provided by CEPA 1999. This should be undertaken in consultation with other jurisdictions and stakeholders. In this way, a common mission can be developed around how the Act's provisions are to be used in support of environmental and human health protection in Canada.

Environment Canada should develop and introduce, on a priority basis, a comprehensive framework for monitoring and reporting on progress against environmental outcomes. Through this framework, decision-makers at all levels will have appropriate information to facilitate decision-making, and Canadians will be able to determine whether the Act is succeeding in protecting environmental and human health. Specifically, measurement and reporting systems need to be in place to assess progress at the levels of:

• individual risk management measures and tools; and
• departmental programs and priorities relevant to CEPA 1999.

These monitoring and reporting programs should address both:

• changes in the activities and performance of the targeted audiences; and
• changes in environmental quality.

Environment Canada should address, on a priority basis, the lack of action on the federal house provisions under Part 9 of CEPA 1999. Action in this area can address a clear gap in the current implementation of CEPA 1999 and support the Government of Canada's national leadership role in environmental and human health protection.

Environment Canada should undertake actions to strengthen the role of the National Advisory Committee as an effective means of promoting interjurisdictional cooperation. The Department should acknowledge that provincial/territorial and Aboriginal representatives do not fully share its view of the committee's mandate and successes. It should work with its partners to forge a forum that better responds to the emerging needs and priorities of all jurisdictions.

Environment Canada should undertake work to document, communicate and, where possible, address any internal and external barriers that relate to:

• the use of economic instruments, fees and charges;
• cost recovery of both administrative costs and damages resulting from pollution incidents; and
• public actions to initiate investigations and recover damages to private property.

Environment Canada, in cooperation with Health Canada, should clearly document the full range of aspects for which CEPA 1999 is currently required to fulfil safety net provisions with respect to the management of new substances, specifically animate products of biotechnology and emerging technologies. The two departments should work with other federal departments to articulate clear timelines for developing regulations that will result in the management of these aspects of new substances and technologies by the most appropriate department, and under the most appropriate federal legislation.